第十八場【現代國際法講堂】─ Dr. Julian G. Ku：Recent Trends in Academic Legal Research in the United States: The Example of Taming Globalization
主講人：Dr. Julian G. Ku
記錄：陶倩瑛琦
2014
【現代國際法講堂】是由中華民國國際法學會(CSIL)、學生國際法研究會(SSIL)、政治大學國際法學研究中心(CILS)共同舉辦，未來將定期邀請國內外專家學者，以及大專院校國際法相關領域研究生，為大家分享他們的研究成果與學習經驗！
1. Overview
Thank you for being here. Appreciate that you have no objections by English. I use English for our talk, because if I speak in Chinese, it will be very funny but not useful for me.
Professor Chen asked me to address three topics which I would do in a very complicated way. So the title of my presentation today is to talk about the nature of Academic legal research in the US, this is the word I miss only with. And now this is my eleven fare teaching as a law professor, so teaching now for twelve teaching year. And also talk about the book I recently published and use it as an example to introduce the way which academic in the United States research law. I also thought it was a nice opportunity to talk about to talk about the usual or distinctive aspects of the American system of the UN education. Many of you know about the United states’ system. I will talk about the school I familiar with in Yale Law School.
2. Distinctive Features of U.S. Legal Academy
First I will talk about what I think is some unusual or distinctive or features of the American education. Then I will talk about a little bit about the education and background of the most American legal academics or most American law professors. And this will be as a way to introduce you as a way in which American legal scholars are trained and help you understand the nature of the type of research. As a hope it will be interesting to you. As an example I think is typical, hopefully excellent, example of the American legal research and I use the book that recently published. And I will go through the book to allow you to understand both the type of work I’ve been doing but to get insides against the nature of how American legal scholars to typically go about conducting legal research.
Couple of things in American system education I think is worth high letting before we talk about this.
The one thing that I think people out side American system don’t fully appreciate is that in the traditional American there were no law schools. Lawyers in American were originally trained as practices. They didn’t go to school, they just worked for a lawyer and the lawyer taught them. And later in the American history that law school stated. But law in America for many people was not something that was part of a university. So for many lawyers in America, you become a lawyer but you didn’t come to University. So most American famous lawyer like Abraham Lincoln was a very good lawyer. He never went to law school. He never went to university but he was very very good lawyer. Now was a very traditional type of American lawyer. Only in the last hundred years, perhaps, the system changed. So that lawyers in American all go to universities. The reason why that is interesting is because therefore the nature of our school is a little bit different from the school in Europe. We are traditionally the lawyer that for England. The United States traditional law faculties historically were just lawyers. Lawyers who would working on the side, taught law students. So the study was interesting that very few American professor of law hold PhDs and almost none of them hold PhDs in law. So it will be very unusual for American professor to hold a PhD in law. This is why American students always surprised by foreign students who come to America saying, “Oh, I’m studying in PhD”. Americans ask “why?” ”What are you doing?”. Because the number of law professor holding PhDs in law is zero. But many of them hold PhDs in other subjects, like history, economics or philosophy. But that’s not part of their training to be a law professor. So I think it comes out in American tradition of lawyers not being part of university have been private lawyers, who would also teach at the university. And I will talk about why that maters in something. The other thing interesting, which I think is most different from Europe, is that most American law professors in law legal academics have experiencing the practice of attorneys. So many of them would work before they join the faculty in law school. In many other countries, you (should) have been a researcher that you come to faculty. Just use my self as an example, it was just like I worked as an attorney for two years in New York city. In any other form, I worked every day all the time, hundred hours a week. But it was a very good experience and it was very uncommon for law professor to have that kind of practical experience.
The other thing that is unusual for American professor system is that American law professors write articles which are published in law journals. I prefer this one the Yale law journal. But what’s true about these journals is that it’s completely controlled by students. So there is no professors to let this articles to published at these journals. There is no other countries in the world have this system, which the students select which articles will be published in the academic journals. So in a sense, students of the schools have influence on the academic research in America. Because this publications are controlled by students. This is true for American major journal. There are some of them are controlled by professors but most of them are controlled by students. The most to make us to think about is the way which my book and research that I’ve done should be understood.
3. Typical Education and Background of U.S. Legal Academics
Finally, there is focus on the three law schools. Probably almost clear majority of law professors in American could graduate in three law schools. That is Harvard, and Stanford. These schools, in some degree, are thought training law professors as well. Yale law school sees itself as an academic school, as a school that would produce future law professors. However which is also interesting in Yale, Harvard, and Stanford is that most of the students become practicing lawyers not professors. And the education you get there is the same. If you going to be a law professor or you going to be a lawyer, it is no difference in the class you take or the training you get. So even these schools are dominate in legal academic law professor world in America, actually most of their students go on business of law. The most of my friends of law school are lawyer or government officials. These school do have creative system to try to train their student a little bit more legal academic research and they try to affect or influence the way that legal academic research in America is done. Five of my college have the same academic background I do, which they went to Yale college first and they stayed there to go to Yale law school. And the variation is some of them went to Harvard first and they went to Yale. So the legal academic has been constricted among these three law schools. So the work is to let you understand American law professors. They tended to come from the same law schools.
So this is my first part, just to introduce the background of the professor in law school. They typically do not hold PhDs in Law. A law professor has the same training of a law professor and a law professor first will have experience as a practical attorney. And many of them graduate from Harvard, Yale, Stanford law schools.
4. Scholarship: Taming Globalization
How does this affect scholarship?
Then I will have the opportunity to talk about my research, the book Taming Globalization. It came out two years ago now. Which is interesting about the book is that a nice example of the American encourages the law professor to talk about the law problems, as well as engaged in academic theory. The theory we deal with is actually often in other field outside the law field. I hope you could have some questions about it.
U.S. and other countries face unique pressures from international law and international institutions to conform and cede international institutions. But what is interesting is that international constitutions also try to influence the countries behave. The countries are influenced by international constitutions and the international constitutions try to influence the country. In the legal world is become one example this would be international courts or international arbitration tribunals that have attempted to force countries to change their policies to conform the international law. But what should the United States do? How should US be engaged in these sorts of international institutions or international courts. How much authority should the United States gave to the international court? How much authority should the United States keep for itself to protect its sovereignty? In particular, this has been important to lawyers. Because there are more and more cases in US courts where international law and international institutions have had an impact on domestic law. It has been relatively interesting within the US. Each country has its own example of this that how much to confirm to the international laws. But US has it’s own kind of unique to be. Few of years ago in Taiwan I remember this dispute for beef. This concerns about the US demanding in Taiwan to import the beef. There was a concern about international standards of the domestic rules in Taiwan. That’s sort of a little bit what’s going on. US was worried about to what degree it must change it’s roles in order to inform the international rules. So without being too symbolistic, I did find two schools in US about this question. The one school I call internationalist, and there is a professor who is associated with this school. Although I don’t he would disagree with me. His name is Louis Henkin of Columbia Law School. He passed away a few years ago, but he was a very senior influential professor in America for many years. And he was started for classic position which I called the internationalist position. America should sieve as much as possible to engage with international institutions. To adopt international legal rules to adjust its laws to make sure conforms to the international rule. There are sovereigntist scholars, the people who value sovereignty. I’m often associated with this school, people who are not worried about international institutions, who want to sovereignty US against more international constitutions. People should join international institutions, and if people join the international institutions they should limit the power the international institutions have. I think these are two school we though within the united institution. If you look at American congress, 70% are amount sovereigntist but 30% among internationalist. In other words power side is sovereigntist group but schoolars are on another side. Our book is attempt to find the balance between these groups. This is our argument. Here our argue is a middle ground. The way we thought is some degree is to return the focus to the US constitution. US constitution is a very important rules that limit and guide US policy here. It’s interesting conversation conversation. But the US is a country that usually connected to its constitution. So united states has been an insistence for 200 years. Frence has become longer time. But it keep changing. So US Constitution is very important in American political identity. So the argument of our part is that people in American talk about sovereignty. But they really mean is constitution. In the US, the constitution is an important symbol of sovereignty. Why? Constitution ratified by “People of the United States”. The US is different because people go to it to say “yes” or “no” to the constitutions. So the constitution represents people’s view and its interest. US is seems like an unusual idea. That’s why in US the traditionally view is the constitution is the highest law. The constitution is supreme to any kind of law, including international law. The idea here is that because the constitution is represents the action of people, there’s nothing can be the sovereignty of its people. So even the international rules cannot override the constitution. It’s a theory. That’s something accepted within American system. So the US constitution is a check, the limitation on American engagement to the international constitution. So the constitution will protect American sovereignty it will also provide a limit to US engagement with international institutions and international law. Because in American system is supreme, not higher than the constitution. That’s not true in other countries. In Europe, some countries let certain international rules supreme to international rules. So it depends. So give me an example therefore, how the constitution it limits the American system and how much authority it can give international institutions. Some of you here the case, it’s the case of US and international court of justice. Internaiotnal court justice is created under united system. So united justice order the US to review and reconsider its death penalty against Mexican citizens, who had been arrested and convicted in the US. So there’s series things in the very long period of time. There’s Mexican citizens were arrested in American charged with murder or convicted, and then they are sentenced to death. In these cases, there’s no question that the Mexican citizens were guilty. The only argument is that they should have their right to speak to their diplomatic officials before they were charged. So international court justice says you should reconsider the death sentences that you composed because you forgot to let you Mexican citizens to talk to the diplomatic officials. The American defenses didn’t know he was Mexican because they didn’t ask him. Why American should give them the right? In many event, the judge pointed out that you should not execute them until you considered the effect of the violations on their case. So there is a famous relatively important case in 2008 in US called Medellin v. Texas. We really highlight this issue we are talking about here that we just mentioned because in one hand you have the international justice stay in the US, you should not execute the Mexico citizens until you give them another chance to appear such. And the question for the US is “Does the US court have a legal obligation to carry out the order of international justice. That’s the interesting problem for the US. There’s no question for the US to have the obligation to follow the international court justice. The problem here is that the American system does not have its way to stop the obligation. Although we say there is no obligation here to stop the execution, it was unclear that anyone in American accepts the governor of the Texas has the power. So president Bush sent a letter to the governor of Texas saying:” Please stop the execution.” And the governor of Texas said: “No.” I’m the government of Texas, you are just the president of the US. And he was right. In constitution, Texas has the authority of Texas. And American president does not has the authority in the affair unless the congress authorize him to do so. And another thing is that President Bush used to be the governor of Texas. So they went to the court to do it. The court should do something to stop the execution. We want to use court to stop the execution. And you have to, because the so called justice ordered you to. Here is a problem. I think although there is no question that internationally it should be stop the execution, does the US has the obligation to adjust its constitution in the way it organize in order to confirm to international rules? And how should it do so? So I think the solution here, in the international view, what the US should do is to stop the execution. They should carry out the order of international justice. The court should be ordered to stop the Texas execution. And the court has the power to do so because what the international court justice gives all the authority you need. Therefore, the united court justice’s order is legal valid obligation and Texas cannot offend it. Sovereigntist view is never. These people were convicted into horrible murder. There’s no question that they are guilty, so politically Texas should stop the execution. So sovereignty view sort of on this side but not quite. Sovereigntist view is the process of the constitution is the one that should be used to limit the ICJ’s power. Although it’s certainly possible for the US is obligated to stop the execution, in general, the court should only do so when the treaty is clear that the treaty specifically gives power to the court. The treaty here is too vague that we don’t think that is an example the treaty gave the court that kind of power. And the reason they should do that because the court should be extremely hesitant to adopt international obligations to change the domestically constitutional processes. If they had been the domestic case, there’s no question that the US cannot interview the Texas was right. An international argument here is not strong enough to support the action of the interview the case. Because the United System the constitution has a lot of protections for the local state government, it’s fun part of the American system. And it’s obligation is constitution. In general, we should try to limit the power of the institutions. Unless the president and congress has made it clear that they want the transfer power to the international institution. This is different from the traditional international view. Even it’s not clear, shouldn’t we try to always interpret our laws to make sure we conform to the international rules. General speaking for the laws and for the constitution, even if we requires to limit our engagement with the international constitution. But we should limit the domestic treaties to require congress that let the states to carry out the treaty obligation. And the state government should have limited authority to protect their local affaires. This proposal we think would allow the US to engage the institution would give some assurance to people to get some constitution impose the limit. Constitutional limits can allow U.S. to engage deeply with international institutions. Constitution can be a useful way to balance that. And in American system, the constitution is the most important legal document anyway. So if it’s our system to give it to supreme status. Even so does not prohibit the US from engage in international institutions. They just limits that engagement. So we try to do the type of things that we try to engage with series of others, areas of international nation of political science. But we are focusing our legal doctrine and we are trying to analyse our pacific cases to recommend how courts would perceive the future cases. So to some degree there is very practical side. And we are trying to engage the international relations and form of theory at the same time. So don’t think it’s pretty represent example of the way in which people’s scholarship was not creative in the US.
That’s all about my speech.
